In re L.B.

1

NOT DESIGNATED FOR PUBLICATION

No. 120,361

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Interest of L.B.,
A Minor Child.


MEMORANDUM OPINION

Appeal from Atchison District Court; MARTIN J. ASHER, judge. Opinion filed March 29, 2019.
Affirmed.

John R. Kurth, of Kurth Law Office Inc., P.A., of Atchison, for appellant natural mother.

Patrick E. Henderson, assistant county attorney, for appellee.

Before ARNOLD-BURGER, C.J., HILL and BUSER, JJ.

PER CURIAM: Mother appeals the termination of her parental rights to L.B., her
daughter. She contends that insufficient evidence supports the district court's
determination of her unfitness. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Mother is the natural mother of L.B., born in 2017. The State filed a child in need
of care (CINC) petition after L.B. tested positive for amphetamines at birth. The CINC
petition alleged that Mother tested positive for amphetamines and THC and that she
admitted she smoked methamphetamines the day before L.B. was born. The court
removed L.B. from Mother's care and placed her in custody of the Department for
Children and Families (DCF) on January 30, 2017. From jail, Mother stipulated that L.B.
2

was a CINC at the February 2017 adjudication hearing. The court approved a
reintegration plan for Mother the next month. The State filed a motion for finding of
unfitness and termination of parental rights in June 2018. The court held a hearing on the
State's motion in October 2018, where Mary Hoffman—a KVC social worker—and
Mother testified.

Mother testified that in 2014 or 2015, she was addicted to opiates. She took drug
classes and participated in both one-on-one and group therapy sessions to successfully
stop abusing opiates. However, after she was off opiates, Mother started using
methamphetamines. She smoked methamphetamine while pregnant with L.B., who tested
positive for amphetamines at birth. L.B. was taken into state custody from the hospital on
January 31, 2017, at three days old, and Mother was arrested the same day. L.B. has
remained in state custody since then.

Mother was incarcerated from January 31, 2017, to July 31, 2017. In March 2017,
the court approved a reintegration plan for Mother, which she signed in jail. After she
was released that July, Mother had visitation with L.B., which increased to unsupervised
time at the library. But Mother did not show up for her November 17, 2017 visit and
Hoffman lost contact with Mother around that time. Hoffman testified that they had a
problem collecting Mother's urine analysis test (UA) the previous week—she said that
Mother tried to falsify her UA by submitting tea instead of urine. Although Mother
disputes that she tried to falsify her sample, she admitted that she started using drugs
again around that time. Since November 2017, Mother has neither submitted a UA nor
seen L.B.

Mother was incarcerated again in December 2017—she testified that she was
charged with consumption after being found high on methamphetamines. Mother was
released in February 2018 but went back to jail again in July 2018.

3

At the time of the termination hearing in October 2018, Mother was out on bond.
She had pending charges in Brown County at the time—she testified that she had been
charged with possession of methamphetamines, defacing a firearm, and a misdemeanor
paraphernalia charge. When asked about her drug use and her ability to parent, Mother
said she knows she has a drug problem and is willing to go through drug treatment.
Mother testified that she believes getting treatment is the most important thing for her to
move forward. When asked if she believes she is a fit parent, she responded: "At the
moment? I'm incarcerated. I don't see how I can be much of a parent until after I
complete my rehab." She believes that she can complete the reintegration plan once she
completes a rehab program and recommended treatment.

Hoffman concluded her testimony by talking about the ways infants bond with
their parents. She said that as soon as a baby is born, he or she needs to have frequent
contact with a parent to build a bond. Hoffman testified that Mother has not had the type
of contact that would support a bond with L.B. and that L.B. would not recognize
Mother.

After hearing both parties' evidence, the court made factual findings on the record.
The court listed several applicable factors supporting termination, noting four in its
journal entry: K.S.A. 2018 Supp. 38-2269(b)(2) (conduct toward a child of a physically,
emotionally, or sexually cruel nature); K.S.A. 2018 Supp. 38-2269(b)(8) (lack of effort
on the part of the parent to adjust the parent's circumstances, conduct, or conditions to
meet the needs of the child); K.S.A. 2018 Supp. 38-2269(c)(2) (failure to maintain
regular visitation, contact, or communication with the child); K.S.A. 2018 Supp. 38-
2269(c)(3) (failure to carry out a reasonable plan approved by the court directed toward
the integration of the child into a parental home). At the termination hearing, the district
court also found that K.S.A. 38-2269(b)(3) and (b)(5) applied to Mother's case, but these
findings were not included in the termination journal entry. It also found that Mother's
unfitness was unlikely to change in the foreseeable future and that termination of
4

Mother's parental rights is in L.B.'s best interests in accordance with K.S.A. 2018 Supp.
38-2269(a) and K.S.A. 2018 Supp. 38-2269(g)(1).

Mother appeals.

ANALYSIS

A parent has a constitutionally protected liberty interest in the relationship with his
or her child. See Santosky v. Kramer, 455 U.S. 745, 753, 758-59, 102 S. Ct. 1388, 71 L.
Ed. 2d 599 (1982); In re B.D.-Y., 286 Kan. 686, 697-98, 187 P.3d 594 (2008). Given the
inherent importance and unique character of that relationship, the right has been
considered fundamental. As a result, the State may extinguish the legal bonds between
parent and child only upon clear and convincing proof of parental unfitness. K.S.A. 2018
Supp. 38-2269(a); In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 1, 336 P.3d 903 (2014).

As provided in K.S.A. 2018 Supp. 38-2269(a), the State must prove the parent to
be unfit "by reason of conduct or condition" making him or her "unable to care properly
for a child" and that the circumstances are "unlikely to change in the foreseeable future"
before terminating parental rights. The statute contains a nonexclusive list of nine
conditions that singularly or in combination would amount to unfitness. K.S.A. 2018
Supp. 38-2269(b). The statute lists four other factors to be considered if a parent no
longer has physical custody of a child. K.S.A. 2018 Supp. 38-2269(c). The State may also
rely on 1 or more of the 13 statutory presumptions of unfitness outlined in K.S.A. 2018
Supp. 38-2271.

In reviewing a district court's determination of unfitness, an appellate court must
be convinced, based on the full evidentiary record considered in a light favoring the State
as the prevailing party, that a rational fact-finder could have found that decision "highly
probable, i.e., [supported] by clear and convincing evidence." In re B.D.-Y., 286 Kan. at
5

705. The appellate court cannot weigh conflicting evidence, pass on the credibility of
witnesses, or otherwise independently decide disputed questions of fact. 286 Kan. at 705.
In short, any conflicts in evidence must be resolved to the State's benefit and against
Mother.

Clear and convincing evidence shows Mother is unfit.

The district court based its termination of Mother's parental rights on four factors:
K.S.A. 2018 Supp. 38-2269(b)(2) (conduct toward a child of a physically, emotionally, or
sexually cruel nature); K.S.A. 2018 Supp. 38-2269(b)(8) (lack of effort on the part of the
parent to adjust the parent's circumstances, conduct, or conditions to meet the needs of
the child); K.S.A. 2018 Supp. 38-2269(c)(2) (failure to maintain regular visitation,
contact, or communication with the child); K.S.A. 2018 Supp. 38-2269(c)(3) (failure to
carry out a reasonable plan approved by the court directed toward the integration of the
child into a parental home).

The evidence shows that Mother has failed to maintain regular visitation or contact
with L.B. and has exhibited emotionally cruel conduct toward L.B. See K.S.A. 2018
Supp. 38-2269(b)(2) and (c)(2). The court based its finding of emotionally abusive
behavior on the fact that L.B. has had no contact with Mother since birth. The evidence
shows that Mother has had no contact with L.B. since November 2017, when L.B. was
less than a year old. When Mother was not incarcerated, she made no effort to contact
KVC to set up visits with L.B., nor did she make efforts to get L.B. back in her care.

The evidence also supports the court's findings that Mother has displayed a lack of
effort to adjust her circumstances, conduct, or condition to meet L.B.'s needs and that
Mother has failed to carry out a reasonable, court-approved plan. See K.S.A. 2018 Supp.
38-2269(b)(8) and (c)(3). KVC made reasonable efforts to rehabilitate the family, but
those efforts were unsuccessful. Mother stopped complying with UAs and so lost
6

visitation, but she also ceased contact with Hoffman. Mother made little to no progress on
her other case plan tasks, such as completing a RADAC assessment, mental health intake,
or parenting program. Mother has neither obtained nor maintained suitable housing, nor
has she shown that she can provide an adequate income to support herself and L.B. She
asked for no assistance from KVC to complete any of her tasks, nor did she show an
effort to adjust her life to meet L.B.'s needs.

Finally, as the district court noted at the termination hearing, evidence shows that
Mother's drug use is of such duration or nature as to render her unable to care for L.B.'s
ongoing physical, mental, or emotional needs and that Mother has been convicted of
crimes and imprisoned during State involvement in her case. See K.S.A. 2018 Supp. 38-
2269(b)(3) and (b)(5). Mother's drug use is the biggest barrier to reintegration, and it
exacerbates the other factors contributing to her unfitness. Her methamphetamine use has
been pervasive since she was pregnant with L.B., but her struggles with addiction started
before that with opiates. Her addiction prevents her from working toward reintegration. It
has kept her from obtaining visits with L.B., and she continues to be caught up in the
legal system. She has been in and out of jail for this entire case, and she has been charged
with crimes that have yet to be addressed.

Mother, though, cites two cases that she claims support her position that sufficient
evidence does not support the district court's decision. First, she cites In re K.R., 43 Kan.
App. 2d 891, 233 P.3d 746 (2010), arguing that like in that case, Mother made progress
on her case plan before her drug abuse got in the way and deserved an opportunity to
continue making progress. But we reject Mother's argument. Mother has been uninvolved
in this case and has made no progress since November 2017. She completed none of her
case plan tasks and she showed no outward efforts to change her conduct or condition in
any way. Mother also cites In re L.C.W., 42 Kan. App. 2d 293, 211 P.3d 829 (2009), in
support of her argument that the State showed no correlation between her drug use and
her ability to parent L.B. We rejected this argument as well. Mother's case is different, as
7

her termination is not based exclusively on her drug abuse, but also her lack of progress
on her reintegration plan, her lack of contact with her case worker and her daughter, her
inability to stay out of jail, and her general noninvolvement in the case. Her drug use has
prevented her from acting as a parent to L.B.

From the evidence, we must conclude that a rational fact-finder could determine to
a high probability that Mother is unfit to parent L.B. in the ways that the district court
identified.

We also find support for the district court's determination that Mother's unfitness
is unlikely to change in the foreseeable future. In gauging the foreseeable future, the
courts should use "child time" as the measure. As the Revised Kansas Code for Care of
Children, K.S.A. 2018 Supp. 38-2201(b)(4), recognizes, children experience the passage
of time in a way that makes a month or a year seem considerably longer than it would for
an adult, and that different perception typically points toward a prompt, permanent
disposition. In re M.B., 39 Kan. App. 2d 31, 45, 176 P.3d 977 (2008); In re G.A.Y., No.
109,605, 2013 WL 5507639, at *1 (Kan. App. 2013) (unpublished opinion) ("'child time'"
differs from "'adult time'" in care proceedings "in the sense that a year . . . reflects a much
longer portion of a minor's life than an adult's").

Here, child time is of particular significance. L.B. was taken out of Mother's
custody at just three days old, and they lack any relationship or bond that parents and
children may have. Mother has not seen L.B. since November 2017, and she made no
progress on her case in the approximately 21 months between L.B.'s birth and the
termination hearing. Even if Mother retained her parental rights over L.B. at the
termination hearing, she is still in no position to obtain physical custody. Mother has
pending charges related to her drug addiction that may result in more jail time, and
Mother testified that she would have to go through rehab and drug treatment before being
able to be a good and effective parent. L.B. has spent her whole life outside Mother's
8

custody, and that is unlikely to change any time soon. We therefore agree with the district
court's determination that Mother's unfitness is unlikely to change in the foreseeable
future.

Termination of Mother's parental rights is in L.B.'s best interests.

Finally, we consider the district court's finding that L.B.'s best interests would be
served by terminating Mother's rights. K.S.A. 2018 Supp. 38-2269(g)(1). As directed by
the language of K.S.A. 2018 Supp. 38-2269(g)(1), the district court gives "primary
consideration to the physical, mental and emotional health of the child." The district court
makes that determination based on a preponderance of the evidence. See In re R.S., 50
Kan. App. 2d at 1115-16. The district court should weigh the benefits to the child in
terminating the relationship with the parent, given the characteristics and duration of the
unfitness, against the emotional trauma to the child that may result from that termination
and the removal of the parent from his or her life. See In re K.R., 43 Kan. App. 2d at 904.
The best interests issue is essentially entrusted to the district court acting within its sound
judicial discretion. In re R.S., 50 Kan. App. 2d at 1115-16. An appellate court reviews
those sorts of decisions for abuse of discretion. A district court exceeds that broad
latitude if it rules in a way no reasonable judicial officer would under the circumstances,
if it ignores controlling facts or relies on unproven factual representations, or if it acts
outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v.
ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013); State v. Ward,
292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).

Mother argues that it is unclear whether the court considered L.B.'s best interests,
and cites In re K.R., 43 Kan. App. 2d 891, for support. But we disagree, noting that the
district court did, in fact, consider whether termination was in L.B.'s best interests.

9

Rejecting Mother's argument, we agree with the State that the district court did not
abuse its judicial discretion when it made its best interests determination. We find no
shortcomings in the district court's assessment of the evidence or applicable legal
principles, so the remaining component of the abuse of discretion standard asks whether
no reasonable district court would come to the same conclusion under comparable
circumstances. We cannot say that is the case. Mother has almost no relationship with
L.B., and L.B. has been in state custody since she was three days old. L.B. would not
recognize Mother, and she has not seen her since November 2017. Termination of
Mother's parental rights would be unlikely to cause L.B. emotional trauma, as L.B. has
never known a life with Mother in it. L.B. deserves permanency but Mother is not in a
place to give it to her, and she is unlikely to be able to do so in the foreseeable future. The
district court did not abuse its discretion in determining that terminating Mother's
parental rights is in L.B.'s best interests.

Conclusion

We find the district court acted well within the evidence and the law in terminating
Mother's parental rights to L.B.

Affirmed.